By Charles Toutant, From New Jersey Law Journal

The first federal bellwether trial in the Zimmer Durom Cup hip implant multidistrict litigation ended May 12 with a jury in Newark finding that plaintiff Christine Brady’s suit was time-barred by a one-year statute of limitations from her home state of Louisiana.

Lawyers for Zimmer had argued that Brady had notice of her claim no later than December 2008, when her doctor attributed her hip pain to a defect in the company’s hip implant. Lawyers for Brady had argued that her claim did not accrue until March 2009, when an operation to remove the Zimmer Durom Cup allowed her to rule out other issues such as infection.

The jury of four men and four women rendered its unanimous verdict following a three-day trial before U.S. District Judge Susan Wigenton of the District of New Jersey and an hour and 10 minutes of deliberation.

The trial had been bifurcated, with the initial phase focusing on timeliness. A separate jury would have been brought in for a liability trial had the first jury sided with Brady on the statute of limitations issue. Wigenton ordered a bifurcated trial after lawyers for Zimmer argued that such an arrangement would eliminate the chance of its suffering prejudice from jurors being told of the unsubstantiated, nonexpert opinion of Brady’s physician that the Durom Cup was defective and that the company held settlement negotiations with Brady before the statute of limitations had run, according to court documents.

The case, one of about 400 consolidated Zimmer Durom Cup implant suits pending before Wigenton, was the first to be tried in federal court. The second MDL trial, in a case filed by Maryann Ruttenbur, 71, of Salt Lake City, is scheduled for September. Another non-MDL case on behalf of plaintiff Gary Kline is set for trial May 19 in Los Angeles Superior Court.

Zimmer had asked for Ruttenbur’s case to be heard first, but counsel for the plaintiffs argued that her case was less representative of the litigation as a whole because her surgery to remove the Durom Cup came after a car accident. Wigenton chose Brady, who was the plaintiffs’ pick for the first MDL case to be heard.

Brady, a 65-year-old retired database programmer from Homer, Louisiana, had the Zimmer product implanted in her right hip in 2006 and began suffering pain a year later. At an August 2008 check-up, the orthopedic surgeon that implanted the Durom Cup, Cambize Shahrdar, told her there was a gap between her bone and the implant and that she might need surgery to replace it. He told her the cup failed to adhere to her bone due to a problem with its coating and that he had ruled out infection, Zimmer’s lawyers said in court papers.

During another visit in December 2008, the doctor confirmed his earlier analysis and advised Brady to call Zimmer to discuss financial terms for it to pay for a replacement surgery, Zimmer’s lawyers said.

The Durom Cup implant was taken off the market in 2008. It was designed to fuse to the hip socket without screws or cement by encouraging bone to grow into the cup and hold it in place, but patients began to complain that the implant was coming loose, causing pain and other complications. Plaintiffs counsel in the Brady case contended that the Durom Cup sold in the U.S. had a different spray coating than the version sold in Europe, and that the spray coating used on the U.S. Durom Cup was not tested on animals or in clinical trials, according to court documents. Lawyers for the company dispute those claims, according to court documents.

The Brady case is the second victory for Zimmer in Durom Cup litigation and the first in federal court. In November 2014, Zimmer won the first Durom Cup non-MDL trial in the country in a case brought in St. Clair County, Illinois, Circuit Court on behalf of John Pugliese, who had the device implanted in him in 2008 but removed later. Pugliese claimed the Durom Cup was defective and that Zimmer failed to warn of its risks but the jury rendered a complete defense verdict.

Two plaintiff-side lawyers in the Brady case, Derek Braslow of Pogust, Braslow & Millrood in Conshohocken, Pennsylvania, and George Tankard III of Waters, Kraus & Paul in Baltimore, declined to comment on the case after the jury verdict was rendered. The plaintiffs’ lead counsel, Kyla Cole of Waters Kraus in Dallas, did not return a call for comment.

Edward Fanning Jr. of McCarter & English in Newark, and J. Joseph Tanner of Faegre Baker Daniels in Indianapolis, representing Zimmer, also did not return calls about the verdict.

“We are pleased with the verdict that the jury reached in the first Durom multidistrict litigation trial pending in New Jersey District Court, and we stand ready to defend the Durom Cup as needed going forward,” Zimmer spokeswoman Monica Kendrick said in an email.

Photo: Ni Qin/iStockphoto.com.

For more on this story go to: http://www.njlawjournal.com/id=1202726227844/Jury-Nixes-Bellwether-Case-in-Hip-Implant-MDL#ixzz3a2QtKZPs